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5TH NATIONAL MOOT COURT COMPETITION
TARKA SASTRA, 2015
IN THE HON’BLE
SUPREME COURT OF GOD’S ISLAND
IN THE MATTER OF
APPELLATE JURISDICTION
SLP NO. ___ OF 2015
MRIGA APPELLANT
V. STATE OF LEOLAND RESPONDENT NO. 1
AND
WRIT JURISDICTION
W.P. (CIVIL) NO. ___ OF 2015
PUBLIC INTEREST BODIES & RELIGIOUS BODIES PETITIONER
V.
UNION OF GOD’S ISLAND RESPONDENT NO. 2
PETITIONS U/ARTS. 136 & 32 OF THE CONSTITUTION OF GOD’S ISLAND, 1950
ii5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015
MEMORANDUM ON BEHALF OF THE RESPONDENTS
COUNSEL FOR THE RESPONDENTS
TABLE OF CONTENTS
CONTENT P.
LIST OF ABBREVIATIONS v
INDEX OF AUTHORITIES vii
I. CASE LAW vii
II. LEGISLATIONS ix
III. JOURNALS ix
IV. COMMENTARIES ix
V. LEXICONS x
VI. WEBSITES x
STATEMENT OF JURISDICTION
1
STATEMENT OF FACTS
2
ISSUES RAISED
3
SUMMARY OF PLEADINGS 4
WRITTEN PLEADINGS 6
I. WHETHER THE AGREEMENT ENTERED INTO BETWEEN THE COLONIAL
GOVERNMENT OF THE DARK ISLES AND MRIGA, IN 1898, IS BINDING
MEMORANDUM FOR THE RESPONDENTS
iii5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015
UPON THE UNION OF GOD’S ISLAND. 6
[1.1] REPUDIATION OF THE AGREEMENT: AGREEMENT CEASES TO BE
IN FORCE 7
[1.2] BAR TO INTERFERENCE: ART. 363 IS APPLICABLE 8
II. WHETHER THE AMENDMENT TO ARTICLE 26 OF THE CONSTITUTION
OF GOD’S ISLAND, 1950 IS VALID. 9
[2.1] PROCEDURAL CONFORMITY: PROCEDURE PRESCRIBED BY ART. 368
HAS BEEN STRICTLY COMPLIED WITH 10
[2.2] DOCTRINE OF BASIC STRUCTURE: AMENDMENT HAS NOT
DESTROYED OR DAMAGED THE ESSENTIAL FEATURES OF THE
CONSTITUTION
11
[2.3] RETROSPECTIVITY: RETROSPECTIVE APPLICATION OF THE AMENDMENT
IS VALID 12
III. WHETHER THE STATE LEGISLATION OF LEOLAND CONCERNING THE
TAKEOVER AND COMPLETE CONTROL OF THE DEER TEMPLE
ESTABLISHMENT IS UNCONSTITUTIONAL. 13
[3.1] LEGISLATIVE COMPETENCE: STATE LEGISLATURE HAS THE POWER TO
ENACT 14
[3.2] FUNDAMENTAL RIGHTS: NO VIOLATION OF PART III
16
[3.3] PUBLIC INTEREST: LEGISLATION IS IN CONSONANCE WITH
MEMORANDUM FOR THE RESPONDENTS
iv5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015
CONSTITUTIONAL IDEALS 18
IV. WHETHER THE DEER TEMPLE PROPERTY CAN BE USED TO REDRESS
THE FINANCIAL CRISIS CAUSED BY THE LEOLAND LIQUOR CORPORATION. 18
[4.1] INADMISSIBILITY: INTRODUCTION OF NEW ISSUES AT APPEAL STAGE
IS NOT PERMISSIBLE 19
[4.2] ESSENTIALS OF RELIGION: PROHIBITION OF LIQUOR IS NOT AN
ESSENTIAL PART OF THE RELIGION IN QUESTION 19
[4.3] HARMONIOUS CONSTRUCTION: BALANCE HAS BEEN STRUCK
BETWEEN PARTS III & IV 20
V. WHETHER THE OFFICIALS IN THE STATE GOVERNMENT OF LEOLAND
CAN BE HELD GUILTY OF COMMITTING ANY OFFENCE UNDER THE
GOD’S ISLAND PENAL CODE, 1860 FOR THE RESTRUCTURING OF
PROPERTY AND THE CONVERSION OF IDOLS. 21
[5.1] JURISDICTION: LACK OF JURISDICTION TO TRY A CRIMINAL OFFENCE 22
[5.2] PROCEDURAL CONFORMITY: REQUISITE PROCEDURE HAS NOT BEEN
COMPLIED WITH 23
[5.3] NO CRIME COMMITTED: RESTRUCTURING OF PROPERTY & CONVERSION
OF IDOLS IS NOT A PENAL OFFENCE 24
[5.4] GENERAL EXCEPTIONS: GOVERNMENT OFFICIALS ARE IMMUNE FROM
PUNISHMENT 25
PRAYER 26
MEMORANDUM FOR THE RESPONDENTS
v5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015
LIST OF ABBREVIATIONS
ABBREVIATION EXPANSION
§. Section
§§. Sections
¶ Paragraph Number
¶¶ Paragraphs Numbers
& And
AIR All India Reporter
All Allahabad High Court
Anr. Another
Art. Article
Arts. Articles
GPC, 1860 The God’s Island Penal Code, 1860
The Constitution The Constitution of God’s Island, 1950
Co. Company
Cr.P.C., 1973 The Code of Criminal Procedure, 1973
ed. Edition
MEMORANDUM FOR THE RESPONDENTS
vi5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015
etc. Etcetera
HC High Court
Hon’ble Honourable
H.R.E./H.R. & E. Dept. Hindu Religious & Charitable Endowments Department
i.e. id est (Latin)
LLC Leoland Liquor Corporation
Ltd. Limited
M/s. Messrs.
No. Number
Ors. Others
P&H Punjab & Haryana High Court
p. Page Number
Pat Patna High Court
pp. Page Numbers
r/w. Read With
S/d Signed
SC Supreme Court
SCC Supreme Court Cases
S. No. Serial Number
U/§. Under Section
U/§§. Under Sections
U/Art. Under Article
U/Arts. Under Articles
v. Versus
Vol. Volume
Vols. Volumes
MEMORANDUM FOR THE RESPONDENTS
vii5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015
INDEX OF AUTHORITIES
I. CASE LAW
S. NO. CASE TITLE CITATION PP.
1. Amalgamated Electricity Co. v. Municipal Committee AIR 1969 SC 227 (234) 15
2. Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1 16
3. Bachan Singh & Ors. v. State of Punjab AIR 1980 SC 898 18
4. Balraj v. State of Punjab AIR 1989 P&H 273 (¶ 13) 15
5. Brahmachari v. State of West Bengal AIR 1995 SC 2089 16
6. Commissioner of H.R.E. v. Sri Lakshmindra Ajmer Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282 (288) 15
7. Commissioner of Police v. Acharya Jagadishwarananda Avadhuta & Anr. AIR 1984 SC 512 20
8. Dharam Dutt & Ors. v. Union of India & Ors. AIR 2004 SC 1295 14
9. Durgah Committee v. Syed Hussain Ali AIR 1961 SC 1402 20
10. Golak Nath v. State of Punjab AIR 1967 SC 1643 13
MEMORANDUM FOR THE RESPONDENTS
viii5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015
11. Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299 (¶¶ 680, 682) 11
12. Kavalappara Kottarathil Kochuni & Ors. v. The State of Madras & Ors. AIR 1960 SC 1080 17
13. Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461 11, 12
14. Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors. AIR 1997 SC 2517 23
15. Kunwar Sri Vir Rajendra Singh v. Union of India AIR 1970 SC 1946 8
16. M.P. Gopalakrishnan Nair & Anr. v. State of Kerala & Ors. AIR 2005 SC 3053 12
17. M/s. Punjab Tin Supply Co. v. The Central Government & Ors. AIR 1984 SC 87 13, 17
18. Madras Bar Association v. Union of India AIR 2015 SC 1517 10
19. Maharaja Shree Umaid Mills Ltd. v. Union of India AIR 1963 SC 953 7
20. Mangtulal v. Radha Shyam AIR 1953 Pat 14 (20) 16
21. Minerva Mills v. Union of India AIR 1980 SC 1789 (¶ 31) 11, 20
22. Motilal v. State AIR 1952 All 963 (964) 7
23.Municipal Corporation of the City of
Ahmedabad & Ors. v. Jan Mohammed Usmanbhai & Anr.
AIR 1986 SC 1205 18
24. N.K. Bajpai v. Union of India & Anr. AIR 2012 SC 1210 (¶ 14) 16
25. Narendra Kumar v. State of Haryana AIR 1995 SC 519 21
26. Public Service Tribunal Bar Association v. State of Uttar Pradesh AIR 2003 SC 1115 14
27. Raghunath Rao v. Union of India AIR 1993 SC 1267 10
28. S.I. Corporation v. Board of Revenue AIR 1964 SC 207 (215) 7
29. S.P. Mittal v. Union of India AIR 1983 SC 1 (¶ 37) 17
30. S.R. Bommai v. Union of India AIR 1994 SC 1918 12
31. Sajjan Singh v. State of Rajasthan AIR 1965 SC 845 13
32. Shankari Prasad Singh Deo v. Union of India AIR 1951 SC 458 13
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ix5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015
33. Smt. Chander Kali Bail v. Jagdish Singh Thakur AIR 1977 SC 2262 19
34. Sri Kanyaka P.A.S. Committee v. Commissioner H.R. & E. Dept. AIR 1999 SC 3567 16
35. State of Andhra Pradesh v. N. Venugopal AIR 1964 SC 33 25
36. State of Bijar v. Kameshwar Singh AIR 1952 SC 252 18
37. State of Orissa v. M.A. Tulloch and Co. AIR 1966 SC 365 16
38. State of Seraikella v. Union of India AIR 1951 SC 253 (258) 8
39. Synthetics & Chemicals Ltd. v. State of Uttar Pradesh AIR 1990 SC 1927 14
40. Union of India v. Prince Muffakam Jah & Ors. AIR 1995 SC 227 8
41. Waman Rao v. Union of India AIR 1981 SC 271 (¶ 15) 11
II. LEGISLATIONS
S. NO. TITLE OF LEGISLATION PP.
1. The Constitution of India, 1950 Passim
2. The General Clauses Act, 1897 6, 21
3. The Indian Penal Code, 1860 21-25
4. The Code of Criminal Procedure, 1973 21-25
5. The Indian Independence Act, 1947 7
III. JOURNALS
S. NO. TITLE OF JOURNAL PP.
1. All India Reporter (AIR) Passim
2. Supreme Court Cases (SCC) Passim
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x5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015
IV. COMMENTARIES
S. NO. AUTHOR TITLE EDITION PP.
1. M.V. Pylee Constitutional Amendments in India
3rd ed. 2010 10
2. Arvind P. Datar
Commentary on the Constitution of India, Vol. II
22nd ed. reprint 2010
10
3. Durga Das Basu Shorter Constitution of India
13th ed. reprint 2006
Passim
4. Durga Das Basu
Case Book on Indian Constitutional Law
2nd ed. 2007 Passim
5. Durga Das Basu
Commentary on the Constitution of India, Vol. II
8th ed. 2007 Passim
6. Durga Das Basu
Commentary on the Constitution of India, Vol. VIII 8th ed. 2011 Passim
7. Durga Das Basu
Commentary on the Constitution of India, Vol. X
8th ed. 2012 Passim
8. V.N. Shukla Constitution of India 12th ed. 2013 Passim
9. P.S.A. Pillai Criminal Law 12th ed. 2014 Passim
10. Hari Singh Gour
The Penal Law of India 11th
ed.1998 24
11. Peter Murphy Blackstone’s Criminal Practice 2003 25
V. LEXICONS
S. NO. AUTHOR TITLE EDITION PP.
1. Henry Campbell Black Black’s Law Dictionary 4th ed. revised 1968 Passim
2. P. Ramanatha Aiyar Concise Law Dictionary 3rd ed. reprint 2007 15
VI. W EBSITES
S. NO. WEBSITE LINK PP.
1. w ww.scconline.in Passim
MEMORANDUM FOR THE RESPONDENTS
xi5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015
2. www.manupatra.com Passim
3. www.judis.nic.in Passim
4. www.indiankanoon.org Passim
5. www.legalserviceindia.com Passim
6. www.thelawdictionary.org Passim
7. www.oxforddictionaries.com Passim
MEMORANDUM FOR THE RESPONDENTS
STATEMENT OF JURISDICTION
The Appellants herein have approached the Supreme Court of God’s Island through:
1. Appellant: A Special Leave Petition U/Art. 136 of The Constitution of God’s Island,
1950.
2. Petitioner: A Writ Petition U/Art. 32 of The Constitution of God’s Island, 1950.
The petitions have been clubbed together and the Supreme Court has admitted the petitions as
maintainable. The Respondent humbly submits to the jurisdiction of this Hon’ble Court.
This Memorandum sets forth the facts, laws and the corresponding arguments on which
the claims are based in the instant case. The Respondents affirm that they shall accept any
Judgement of this Hon’ble Court as final and binding upon itself and shall execute it in its
entirety and in good faith.
[Each of the parties to the pending dispute before this Hon’ble Court may be referred to
individually as either ‘Appellant’, ‘Petitioner’, ‘Respondent No. 1’ or ‘Respondent No. 2’ as the
case may be. For the sake of convenience, they may be collectively referred to as ‘the
Appellants’ (representing the Appellant & the Petitioner) or ‘the Respondents’ (representing
Respondent No. 1 & Respondent No. 2).]
MEMORANDUM FOR THE RESPONDENTS
STATEMENT OF FACTS
For the sake of brevity, the material facts are placed herewith in the
chronological order:
1. God’s Island, now an independent and secular country, was conquered
by the Dark Islanders in 1700 A.D. Deer’s Cave, belonging to a
religious denominational sect named Mriga, situated in the State of
Leoland, contained a hoard of antique material riches. Unsuccessful attempts to take
over the property by the Colonial Rulers resulted in an Agreement with Mriga to
safeguard Mriga’s rights over the Deer Temple.
2. In 2011, God’s Island faced a huge financial crisis caused by the Leoland Liquor
Corporation. Several people employed in charitable institutions run by the Corporation
lost their livelihood. Subsequently, based on a re-discovery by the National Bureau of
Ancient Antiquities the State Legislature of Leoland enacted a Legislation to enable
complete control and takeover of the Deer Temple establishment.
3. A writ petition filed by Mriga before the High Court of Leoland challenging the
Legislation was dismissed. Simultaneously, the High Court remanded to trial a certain
issue regarding the criminality of actions of the Government Officials. Aggrieved by the
dismissal, Mriga appealed to the Supreme Court of God’s Island.
4. During the time when the judgement was being considered by the Supreme Court, the
Union of God’s Island passed an Amendment to Art. 26 of The Constitution.
Consequently, various other religious denominations and public interest bodies also filed
petitions challenging the Amendment.
MEMORANDUM FOR THE RESPONDENTS
5. The petitions were clubbed to be heard together. The matter was posted for final hearing
before a Constitutional Bench on the 20th of September, 2015.
ISSUES RAISED
ISSUE [I]
WHETHER THE AGREEMENT ENTERED INTO BETWEEN THE COLONIAL GOVERNMENT OF THE
DARK ISLES AND MRIGA, IN 1898, IS BINDING UPON THE UNION OF GOD’S ISLAND.
ISSUE [II]
WHETHER THE AMENDMENT TO ARTICLE 26 OF THE CONSTITUTION OF GOD’S ISLAND, 1950 IS
VALID.
ISSUE [III]
WHETHER THE STATE LEGISLATION OF LEOLAND CONCERNING THE TAKEOVER AND
COMPLETE CONTROL OF THE DEER TEMPLE ESTABLISHMENT IS UNCONSTITUTIONAL.
ISSUE [IV]
WHETHER THE DEER TEMPLE PROPERTY CAN BE USED TO REDRESS THE FINANCIAL CRISIS
CAUSED BY THE LEOLAND LIQUOR CORPORATION.
ISSUE [V]
MEMORANDUM FOR THE RESPONDENTS
WHETHER THE OFFICIALS IN THE STATE GOVERNMENT OF LEOLAND CAN BE HELD GUILTY OF
COMMITTING ANY OFFENCE UNDER THE GOD’S ISLAND PENAL CODE, 1860 FOR THE
RESTRUCTURING OF PROPERTY AND THE CONVERSION OF IDOLS.
SUMMARY OF PLEADINGS
______________________________________________________________________________
[I] WHETHER THE AGREEMENT ENTERED INTO BETWEEN THE COLONIAL GOVERNMENT
OF THE DARK ISLES AND MRIGA, IN 1898, IS BINDING UPON THE UNION OF GOD’S ISLAND.
______________________________________________________________________________
It is humbly submitted before this Hon’ble Court that the Agreement continues in validity after
the commencement of The Constitution by the joint application of §.7 of the God’s Island
Independence Act, 1947 and Art. 372 of The Constitution of God’s Island, 1950. Furthermore,
the application of Art. 363 is not attracted owing to the nature of the parties to the Agreement.
______________________________________________________________________________
[II] WHETHER THE AMENDMENT TO ART. 26 OF THE CONSTITUTION OF GOD’S ISLAND,
1950 IS VALID.
______________________________________________________________________________
It is humbly submitted before this Hon’ble Court that the Amendment to Art. 26 of The
Constitution of God’s Island, 1950 is valid in law. The procedural compliance U/Art. 368 has
been strictly adhered to and the Amendment passes the test of Basic Structure which is the
touchstone of validity of a Constitutional Amendment. Furthermore, there is no bar to the
retrospective application of the Amendment.
______________________________________________________________________________
MEMORANDUM FOR THE RESPONDENTS
[III] WHETHER THE STATE LEGISLATION OF LEOLAND CONCERNING THE TAKEOVER AND
COMPLETE CONTROL OF THE DEER TEMPLE ESTABLISHMENT IS UNCONSTITUTIONAL.
______________________________________________________________________________
It is humbly submitted before this Hon’ble Court that the State legislation of Leoland concerning
the takeover and complete control of the Deer Temple establishment is constitutional. Legislative
competence of the State Legislature to enact in the subject-matter of the Legislation is enshrined
in the List III to the Seventh Schedule of The Constitution. Furthermore, there has been no
violation of Part III or any other provision of the The Constitution of God’s Island, 1950.
______________________________________________________________________________
[IV] WHETHER THE DEER TEMPLE PROPERTY CAN BE USED TO REDRESS THE FINANCIAL
CRISIS CAUSED BY THE LEOLAND LIQUOR CORPORATION.
______________________________________________________________________________
It is humbly submitted before this Hon’ble Court that the Deer Temple property can be used to
cure the financial crisis of the Leoland Liquor Corporation as the prohibition of liquor is not an
‘essential’ part of the religion in question and the principle of Harmonious Construction has been
employed in striking a balance between Parts III & IV of The Constitution of God’s Island, 1950.
______________________________________________________________________________
[V] WHETHER THE OFFICIALS IN THE STATE GOVERNMENT OF LEOLAND CAN BE HELD
GUILTY OF COMMITTING ANY OFFENCE UNDER THE GOD’S ISLAND PENAL CODE, 1860
FOR THE RESTRUCTURING OF PROPERTY AND THE CONVERSION OF IDOLS.
______________________________________________________________________________
It is humbly submitted before this Hon’ble Court that the Officials in the State Government
cannot be held guilty of committing any penal offence under The God’s Island Penal Code,
MEMORANDUM FOR THE RESPONDENTS
1860. The reasoning follows that this Hon’ble Court does not have the jurisdiction to entertain
the issue relating to the penal offence and also that the requisite procedure under The Code of
Criminal Procedure, 1973 has not been complied with.
WRITTEN PLEADINGS
______________________________________________________________________________
[I] WHETHER THE AGREEMENT ENTERED INTO BETWEEN THE COLONIAL GOVERNMENT
OF THE DARK ISLES AND MRIGA, IN 1898, IS BINDING UPON THE UNION OF GOD’S ISLAND.
______________________________________________________________________________
It is humbly contended before this Hon’ble Court that the Agreement entered into between the
Colonial Government of the Dark Isles (hereinafter referred to as the ‘Colonial Rulers’)1 and
Mriga, the Denominational Sect (hereinafter referred to as the ‘Appellant’)2 on 17.08.18983
(hereinafter referred to as the ‘Agreement’) is not binding upon the Union of God’s Island
(hereinafter referred to as ‘Respondent No. 2’)4 and therefore not binding on the State of Leoland
(hereinafter referred to as ‘Respondent No. 1’)5.
In order to prove that the Agreement is not binding, the following must be considered:
i. that the Agreement ceases to be binding owing to repudiation by the appropriate
authority; and [1.1]
1 Moot Proposition, p. 2, ¶ 22 Memorandum For The Respondents, p. i, Cause Title3 Moot Proposition, p. 3, ¶ 64 Memorandum For The Respondents, p. i, Cause Title5 Memorandum For The Respondents, p. i, Cause Title
MEMORANDUM FOR THE RESPONDENTS
ii. that the present case attracts Art. 363 of The Constitution of God’s Island, 1950
(hereinafter referred to as ‘The Constitution’6).7 [1.2]
[1.1] REPUDIATION OF THE AGREEMENT : AGREEMENT CEASES TO BE IN FORCE
The Respondents most respectfully submit that the Agreement is not valid at the present
date as it has been repudiated or revoked by the appropriate authority. Repudiation is required to
make the Agreement cease in its application by virtue of the following:
a. that the Agreement is not valid by virtue of §. 7(b) of the God’s Island Independence
Act, 1947 enacted by the Colonial Rulers; and 8 [1.1.1]
b. that the Agreement is not valid under Art. 372(1) of The Constitution.9 [1.1.2]
1.1.1: AGREEMENT IS NOT VALID BY VIRTUE OF §. 7(B)
The Agreement is not valid by virtue of §. 7(b). This clause prescribes that the
suzerainty of His Majesty over the Indian States lapses, and with it, all treaties,
agreements, obligations, powers, rights etc. in force at the date of the passing of this Act
between His Majesty and the rulers of Indian States, also lapses. Thus, the Agreement in
the present case has been lapsed and is not valid now.
1.1.2: AGREEMENT IS NOT VALID UNDER ART. 372(1)
The object of Art. 372(1) is to sanction the continuance of the existing laws until
they are repealed or amended by a competent authority under the new Constitution.10 At
the outset, an agreement does not come under the definition of ‘law’ provided in Art.
13(3)(a). An agreement rests solely on the consent of the parties; it is entirely contractual
6 §. 3(15). “Constitution’. The General Clauses act, 18977 Art. 363. “Bar to interference by courts in disputes arising out of certain treaties, agreements, etc .” The Constitution of God’s Island, 19508 §. 7. “Consequences of the setting up of the new Dominions”. God’s Island Independence Act, 19479 Art. 372. “Continuance in force of existing laws and their adaptation”. The Constitution of God’s Island, 195010 S.I. Corporation v. Board of Revenue, AIR 1964 SC 207 (215); See also Motilal v. State, AIR 1952 All 963 (964)
MEMORANDUM FOR THE RESPONDENTS
in nature and is not law, because it has none of the characteristics of law.11 Therefore the
above provision does not apply in the present case.
[1.2] BAR TO INTERFERENCE : ART. 363 IS APPLICABLE
It is most respectfully submitted that Art. 363 bars the jurisdiction of the Supreme Court
and all other courts to entertain a dispute arising out of any treaty, agreement, etc. which was
entered into or executed before the commencement of this Constitution between the Rulers of
Indian State and the Government of India.
In order that the bar under Art. 363(1) is to apply, there are three conditions to be
fulfilled:12
i. That such instrument should have been executed before The Constitution came into
force, [1.2.1]
ii. That such instrument is in operation after The Constitution came into force, [1.2.2]
iii. That the dispute which is the subject-matter of the litigation may arise before or after.
[1.2.3]
1.2.1: THE AGREEMENT WAS EXECUTED PRIOR TO THE COMMENCEMENT OF THE
CONSTITUTION
The alien rulers entered into an Agreement with the Appellant on 17.08.1898 which
mandated legal recognition and respect for the tradition and lineal rights and relating to the
management and daily administration of the temple and its properties13 and the same was
11 Maharaja Shree Umaid Mills Ltd. v. Union of India, AIR 1963 SC 95312 State of Seraikella v. Union of India, AIR 1951 SC 253 (258); See also Union of India v. Prince Muffakam Jah and others interveners, AIR 1995 SC 227; Kunwar Sri Vir Rajendra Singh v. Union of India, AIR 1970 SC 194613 Moot Proposition, p. 3, ¶ 6
MEMORANDUM FOR THE RESPONDENTS
recognised by the King of the Dark Isles in 1901.14 Therefore, it is clear that the Agreement
was entered into and recognized before the commencement of The Constitution.
1.2.2: AGREEMENT CONTINUES IN OPERATION AFTER COMMENCEMENT
The Agreement which was entered into prior to the commencement of The Constitution
has continued in operation after such commencement, owing to the continuous possession of
the temple property by the Appellant.
1.2.3: DISPUTE AROSE AFTER COMMENCEMENT
Art. 363 also provides that the dispute concerning the Agreement may arise before or
after the commencement of The Constitution. In the present case, the dispute having arisen
after the commencement, it is valid.
____________________________________________________________________________
[II] WHETHER THE AMENDMENT TO ART. 26 OF THE CONSTITUTION, 1950 IS VALID.
______________________________________________________________________________
It is humbly contended before this Hon’ble Court that the Amendment to Art. 2615 of The
Constitution is valid in law. In the present instance, the Amendment to Art. 26 is in conformity
with the ideals of The Constitution and upholds the principle of Secularism.16
14 Moot Proposition, p. 3, ¶ 715 Art. 26. “Freedom to manage religious affairs”. The Constitution of God’s Island, 195016 “SECULAR”, inserted by the Constitution (42nd Amendment) Act, 1976. Preamble to the Constitution of God’s Island, 1950
MEMORANDUM FOR THE RESPONDENTS
The power of the Parliament to amend The Constitution is derived from Arts. 245,17 24618 &
24819 r/w. item 97 in List I, i.e. the Union List.20 The residuary power of the Parliament can
certainly take in the power to amend The Constitution.21 Art. 36822 is the principal provision that
confers upon the Parliament the wide power of Amendment.
To examine the validity of the Amendment, the Court should not concern itself with the
wisdom behind or the propriety of the Constitutional Amendment but rather with the compliance
of the following rules: 23
i. that the procedure prescribed by Art. 368 of The Constitution has been strictly complied
with; and [2.1]
ii. that the amendment has not destroyed or damaged the basic structure or the essential
features of The Constitution.24 [2.2]
It is also important to establish that there is no bar to the retrospective effect given to the
Amendment [2.3].
[2.1] PROCEDURAL CONFORMITY : THE PROCEDURE PRESCRIBED BY ART. 368 HAS BEEN
STRICTLY COMPLIED WITH
17 Art. 245. “Extent of laws made by Parliament and by the Legislatures of States”. The Constitution of God’s Island, 195018 Art. 246. “Subject-matter of laws made by Parliament and the Legislatures of States”. The Constitution of God’s Island, 195019 Art. 248. “Residuary powers of Legislation”. The Constitution of God’s Island, 195020 Schedule VII, List I - Union List. Entry 97. “Any other matter not enumerated in List II or List III including fees taken in any court”. The Constitution of God’s Island, 195021 M.V. Pylee, Constitutional Amendments in India, 3rd ed. 201022 Art. 368. “Power of Parliament to amend the Constitution and procedure thereof”. The Constitution of God’s Island, 195023 Madras Bar Association v. Union of India, AIR 2015 SC 151724 Raghunath Rao v. Union of India, AIR 1993 SC 1267; See also Arvind P. Datar, Commentary on the Constitution of India, Vol. II (2nd ed. reprint 2010)
MEMORANDUM FOR THE RESPONDENTS
It is most respectfully submitted that the procedure prescribed by Art. 368 has been strictly
complied with. For the purposes of an Amendment U/Art. 368, the provisions of The
Constitution fall under two categories:
(i) Art. 368(2) prescribes that an amendment can be effected by a special majority, i.e., a
majority of the total membership of each House of Parliament as well as by a majority of
not less than 2/3rds of the members of that House present and voting.
(ii) The proviso to Art. 368(2) prescribes a condition for five types of amendment wherein a
ratification of not less than one half of the State Legislatures is required.
In the present case, though the Amendment to Art. 26 is one that falls under the former
category and not the latter, the ratification of the Amendment by all the State Legislatures is in
furtherance of their approval of the Amendment to The Constitution.25 Therefore, no doubt can
be raised as to the validity of the Amendment where the additional procedural step of ratification
has been followed.
[2.2] DOCTRINE OF BASIC STRUCTURE : THE AMENDMENT HAS NOT DESTROYED OR
DAMAGED THE ESSENTIAL FEATURES OF THE CONSTITUTION
It is most respectfully submitted that there has been no violation of the Doctrine of Basic
Structure in the present case. The Basic Structure or Features of The Constitution constitute the
unalterable part of The Constitution. In the present context, the scope of the Doctrine of Basic
Structure under Part III26 is to be examined. The present position as to the amenability of
Fundamental Rights is that:
(i) Fundamental Rights, as a class, are not immune from amendment.27
25 Moot Proposition, p. 5, ¶ 19 26 Part III. Fundamental Rights. The Constitution of God’s Island, 1950.27 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
MEMORANDUM FOR THE RESPONDENTS
(ii) But the principle of equality in Art. 1428 as well as the ‘essence’ of other fundamental
rights in Part III cannot be amended because these form part of the basic structure of The
Constitution.29
In Kesavananda Bharati v. State of Kerala,30 it was held that the Parliament may amend the
Fundamental Rights provided the basic foundation and structure of The Constitution remains
unaltered.
In the present case, Art. 26, a fundamental right, prior to the Amendment only provided
rights to the religious denominations with respect to managing its own affairs and administering
its property. Though reasonable restrictions were placed on these rights through the words
“public order, morality and health”, there was lack of an express provision providing for a
Government action to remedy the situation of violation of the reasonable restriction. Therefore,
such an Amendment does not affect the basic structure but merely effects changes by adding the
necessary detail of Government action in case of violation of reasonable restriction.
God’s Island is a secular country. Secularism has been inserted in the Preamble by reason of
The Constitution (Forty-Second Amendment) Act, 1976. The object of inserting the said word
was to expressly spell out the high ideas of secularism and the integrity of the nation on the
ground that these institutions are subjected to considerable stresses and strains and vested
interests have been trying to promote their selfish ends to the great detriment of the public
good.31
28 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 (¶¶. 680, 682); See also Minerva Mills v. Union of India, AIR 1980 SC 1789 (¶ 31)29 Waman Rao v. Union of India, AIR 1981 SC 271 (¶ 15)30 AIR 1973 SC 1461 (769)31 M.P. Gopalakrishnan Nair & Anr. v. State of Kerala & Ors., AIR 2005 SC 3053; See also S.R. Bommai v. Union of India, AIR 1994 SC 1918
MEMORANDUM FOR THE RESPONDENTS
[2.3] RETROSPECTIVITY : THE RETROSPECTIVE APPLICATION OF THE AMENDMENT IS
VALID
It is most respectfully submitted that the retrospective application of the Amendment to
the State Legislation is valid. Parliament has given retrospective effect to the working of the
Amendment to Art. 26 in order to clarify certain details regarding the rights and obligations of
the Respondents and the Appellants respectively, while upholding the State Legislation that
permitted the takeover and control of the Deer Temple property. Since the constituent power is
plenary (subject to the Doctrine of Basic Structure) and there is no provision barring
retrospective amendment of The Constitution, an amendment of The Constitution can be given
retrospective effect.32
The retrospective effect may be given where there are express words or where the
language used necessarily implies that such retrospective operation is intended. Hence the
question of whether a statutory provision has retrospective effect or not depends primarily on the
language in which it is couched.33 In the present case, this requirement has also been complied
with which can be understood by virtue of the wording of the Amendment, which clearly states:
“... shall be deemed to have always possessed every right and means to pass a law...”34
In light of the above, it is humbly submitted that in the instant matter, the Respondents
have followed the requisite procedure for the amendment and have not violated the Basic
Structure of The Constitution and the retrospective application of the amendment is valid.
______________________________________________________________________________
32 Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458; See also Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845; Golak Nath v. State of Punjab, AIR 1967 SC 164333 M/S Punjab Tin Supply Co. v. The Central Government & Ors., AIR 1984 SC 8734 Moot Proposition, p. 5, ¶ 18
MEMORANDUM FOR THE RESPONDENTS
[III] WHETHER THE STATE LEGISLATION OF LEOLAND CONCERNING THE TAKEOVER AND
COMPLETE CONTROL OF THE DEER TEMPLE ESTABLISHMENT IS UNCONSTITUTIONAL.
______________________________________________________________________________
It is humbly contended before this Hon’ble Court that the State Legislation of Leoland
(hereinafter referred to as ‘State Legislation’) concerning the takeover and complete control of
the Deer Temple establishment is constitutional.
It is a well-settled rule that while dealing with a challenge to the Constitutional validity of
any legislation, the Court should prima facie lean in favour of Constitutionality and should
support the legislation and it is the party who attacks the validity of the legislation to place all
materials before the Court to make out a case for invalidating it.35
In order to determine the validity of the State Legislation, on the subject of the takeover and
control of the Deer Shrine property, it is important to consider the following:
i. the legislative competence as defined and specified in Part XI, Chapter I of The
Constitution,36 [3.1] and
ii. the effect of the legislation on fundamental rights guaranteed in Part III and any other
constitutional provision.37 [3.2]
It is also relevant to note that the reasoning for the enactment of the legislation is in
consonance with the Constitutional ideals of promoting public interest. [3.3]
[3.1] LEGISLATIVE COMPETENCE : STATE LEGISLATURE DOES NOT HAVE THE POWER TO
ENACT
35 Dharam Dutt & Ors. v. Union of India & Ors., AIR 2004 SC 129536 Part XI. “Relations between the Union and the States”, Chapter I. “Legislatives Relations”, The Constitution of God’s Island, 195037 Public Service Tribunal Bar Association v. State of Uttar Pradesh, AIR 2003 SC 1115
MEMORANDUM FOR THE RESPONDENTS
Respondent No. 1 most humbly submits that in order for a legislation to survive the test
of Constitutionality, the enacting body which in the present case is the State Legislature, must
have the required legislative competency to enact such legislation. The word ‘sovereign’ means
that the State has power to legislate on any subject in conformity with Constitutional
limitations.38 Art. 246 of The Constitution deals with the distribution of legislative powers as
between the Union and the State Legislatures. The Article gives concurrent power to the Union
and State with respect to the Entries enumerated in List III, 39 [3.1.1] and a law enacted by the
State with respect to List III shall be valid unless it is repugnant to a law made by the Union. 40
[3.1.2].
3.1.1: CONCURRENT POWER TO THE UNION AND STATE WITH RESPECT TO THE
ENTRIES ENUMERATED IN LIST III
Art. 246(2) warrants the State Legislature to enact legislations with respect to the
entries listed under List III, along with the Union Legislature. Entry 42 of the List, which
reads ‘Acquisition and Requisition of Property’, entitles the State to pass a law with
respect to that field. The Supreme Court, holding that the word ‘property’ should be
given a wide and liberal connotation, extended it to all kinds of property.41 No implied
restriction such as the existence of a public purpose or an obligation to pay compensation
can be read into this entry, which is a mere legislative head.42 Therefore enacting
legislation for the takeover and complete control relating to the temple establishment
would fall well within the ambit of Entry 42. 43
38 Synthetics & Chemicals Ltd. v. State of Uttar Pradesh, AIR 1990 SC 192739 Concurrent List, Seventh Schedule, The Constitution of God’s Island, 195040 Amalgamated Electricity Co. v. Municipal Committee, Ajmer, AIR 1969 SC 227 (234)41 Commissioner of H.R.E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 (288)42 Balraj v. State of Punjab, AIR 1989 P&H 273 (¶ 13)43 Moot Proposition, p. 3, ¶ 10
MEMORANDUM FOR THE RESPONDENTS
3.1.2: A LAW ENACTED BY THE STATE WITH RESPECT TO LIST III SHALL NOT BE
VOID UNLESS IT IS REPUGNANT TO A LAW MADE BY THE UNION
Repugnant means inconsistent, contradictory or incompatible with.44 Repugnancy
arises when two enactments both within the competence of the two Legislatures collide
and when The Constitution expressly provides that the enactment of one Legislature has
superiority over the other.45 There is must actual inconsistency between such law and a
Union legislation.46 In the present instance, it is pertinent to note that there is absence of
any Union legislation under Entry 42 of List III which is repugnant to the provisions of
the State legislation. Hence, such legislation cannot be held to be void on the ground of
repugnancy.
[3.2] FUNDAMENTAL RIGHTS : NO VIOLATION OF PART III
Respondent No. 1 most humbly submits that to examine the validity of the State
legislation and to comprehend its effect on the constitutional provisions, it is important to
understand that Art. 26 cannot be attracted in the case of Appellant, [3.2.1] the fundamental
rights are not absolute and are designed to suffer reasonable restriction47 [3.2.2] and the
retrospective effect given to Art. 26 validates the State Legislation. [3.2.3]
3.2.1: ART. 26 CANNOT BE ATTRACTED IN THE CASE OF THE APPELLANT
Among the religious institutions, denominational institutions stand on a different footing
and enjoy special protection under Art. 26.48 However in order to constitute a religious
denomination, the three conditions must be satisfied:49
44 P. Ramanatha Aiyar, Concise Law Dictionary, 1011 (3rd ed. reprint 2007)45 State of Orissa v. M.A. Tulloch and Co., AIR 1966 SC 36546 Mangtulal v. Radha Shyam, AIR 1953 Pat 14 (20)47 Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1; See also N.K. Bajpai v. Union of India & Anr., AIR 2012 SC 1210 (¶ 14)48 Sri Kanyaka P.A.S. Committee v. Commr. H.R. & E. Dept., AIR 1999 SC 356749 Brahmachari v. State of West Bengal, AIR 1995 SC 2089
MEMORANDUM FOR THE RESPONDENTS
a. It must be a collection of individuals who have a system of beliefs or doctrines
which they regard as conducive to their spiritual well-being, i.e., a common faith.
b. A common organization.
c. Designation by a distinctive name.
Though the Appellant has a common name, Mriga, they do not possess a common faith,
which is considered to be more important than the other features.50 This is clear from the fact
that the Appellant’s religious doctrine and belief system is based on an abstract philosophical
ideology. The Hon’ble Supreme Court in the case of S.P. Mittal v. Union of India51 very
clearly stated that a belief system based on a philosophy does not give a class or community
the identity of religious denomination.
3.2.2: FUNDAMENTAL RIGHTS ARE SUBJECT TO REASONABLE RESTRICTIONS
The State is expected to bring about a Welfare State within the framework of The
Constitution, for it is authorised to impose reasonable restrictions, in the interests of the
general public, on the fundamental rights.52 The reasonable restrictions attached to the
fundamental rights warrants the State to act accordingly when the fundamental right is being
exploited or used in a deceitful manner. In the present instance, the misappropriation of the
devotees contribution and treasures of the temple53 on the part of the Appellant and the
sufferings caused to a large number of employees and beneficiaries, justifies the action of the
State Legislature in passing the legislation.
3.2.3: THE RETROSPECTIVE EFFECT GIVEN TO ART. 26 VALIDATES THE STATE
LEGISLATION
50 S.P. Mittal v. Union of India, AIR 1983 SC 1 (¶ 37)51 AIR 1983 SC 152 Kavalappara Kottarathil Kochuni & Ors. v. The State of Madras & Ors., AIR 1960 SC 108053 Moot Proposition, p. 2, ¶ 4
MEMORANDUM FOR THE RESPONDENTS
The Amendment to Art. 26, which has been given retrospective effect through its implied
language54 endorses the State Legislature’s act of passing the impugned legislation. It is
humbly submitted that as the retrospective effect has been made essentially in the interest of
the temple and also of the charitable bodies run by Leoland Liquor Corporation (hereinafter
referred to as ‘LLC’), the State legislation cannot be said to be unreasonable or arbitrary and
thus does not violate fundamental rights of The Constitution.
[3.3] PUBLIC INTEREST : LEGISLATION IS IN CONSONANCE WITH THE CONSTITUTIONAL
IDEALS
The Respondent No. 1 most humbly submits that ‘public interest’ means those interests
which concern the public at large; some interest that affects the legal rights and liabilities of a
community.55 It is of wide import, comprehending public order, public health, public security,
morals, economic welfare of the community and the objects mentioned in Part IV of The
Constitution56 and consequently the right of the individual has to be sublimated to the larger
interest of the general public57.
Therefore, it is humbly submitted before this Hon’ble Court that the State Legislature’s
act of passing the legislation befit the circumstances of the case as the interest of the community
of employees affected by the closure of LLC constitute the larger public interest.
______________________________________________________________________________
[IV] WHETHER THE DEER TEMPLE PROPERTY CAN BE USED TO REDRESS THE FINANCIAL
CRISIS CAUSED BY THE LEOLAND LIQUOR CORPORATION.
______________________________________________________________________________
54 Punjab Tin Supply Company v. Central Government, AIR 1984 SC 8755 State of Bijar v. Kameshwar Singh, AIR 1952 SC 25256 Bachan Singh & Ors. v. State of Punjab, AIR 1980 SC 89857 Municipal Corporation of the City of Ahmedabad & Ors. v. Jan Mohammed Usmanbhai & Anr., AIR 1986 SC 1205
MEMORANDUM FOR THE RESPONDENTS
It is humbly contended before this Hon’ble Court that the Deer Temple assets can be used to cure
the financial crisis of the LLC. At the outset it is important to establish that this Hon’ble Court
cannot take up the additional issue of whether liquor prohibition is an essential part of the
religion in question, which was not brought to light before the Hon’ble High Court. [5.1]
Furthermore, the question to be clarified in the present case is not whether the taking over
and complete control of the assets by the State Government of Leoland is permissible, but
whether the assets can be used to clear the debt-riddled condition of God’s Island.
In the present case, establishing the following will undoubtedly point in the direction of the
validity of the act of using the assets to pay the debt of the LLC:
i. that the prohibition of liquor is not an ‘essential’ part of the religion in question; [5.2]
ii. that the principle of Harmonious Construction has been employed in striking a balance
between the Directive Principles of State Policy and the Fundamental Rights. [5.3]
[5.1] INADMISSIBILITY : INTRODUCTION OF NEW ISSUE AT APPEAL STAGE IS NOT
PERMISSIBLE
The Respondents most respectfully submit that the new issue regarding the prohibition of
liquor as an essential ingredient of the religion cannot be brought to light by the Appellant in this
stage. It has to be noted that a new question of fact can only be entertained in the initial stage and
not at the appellate stage.58
[5.2] ESSENTIALS OF RELIGION : THE PROHIBITION OF LIQUOR IS NOT AN ‘ESSENTIAL’
PART OF THE RELIGION IN QUESTION
The Respondents most respectfully submit that Art. 26 of The Constitution allow
religious denominations to manage its own affairs in matters of religion. The protection under
this Article must however be confined to such religious practices which are essential and an
58 Smt. Chander Kali Bail v. Jagdish Singh Thakur, AIR 1977 SC 2262
MEMORANDUM FOR THE RESPONDENTS
integral part of it59, whereby, without it, there would be a significant or fundamental change in
the nature of the religion. Essential or integral part has to be determined with reference to the
doctrines, practices, tenets, historical background, etc. of the religion.60 However, it is pertinent
to note that there is no clear indication as to necessity for the prohibition of liquor from the
Appellant’s practices, tenets or historical background.
[5.3] HARMONIOUS CONSTRUCTION : BALANCE HAS BEEN STRUCK BETWEEN DIRECTIVE
PRINCIPLES OF STATE POLICY AND FUNDAMENTAL RIGHTS
The Respondents most respectfully submit that The Constitution is founded on the bed
rock of the balance between Part III61 and Part IV62. To give absolute primacy over the other is to
disturb the harmony of The Constitution. This harmony and balance between Fundamental
Rights and Directive Principles is an essential feature of the Basic Structure of The
Constitution.63 The rights under Art. 26 are subject to reasonable restrictions which are expressed
through the usage of words such as ‘public order, morality and health’ and ‘administer such
property in accordance with law’. Beeping in mind the misappropriation on the part of the
Appellant, it was unerring on the part of the Respondent No. 1 to acquire the property.
Furthermore, such an acquisition was executed by Respondent No. 1 in furtherance of the
principles laid down in Parts III & IV of The Constitution. Thousands of employees of LLC and
its allied charitable institutions such as public hospitals, primary and secondary schools,
environment protection societies, medical research faculties and old age homes64 and the
beneficiaries of such charitable institutions lost their livelihood due to the financial crisis. It is
the duty of the State to incorporate within its policies the Directive Principles of State Policy, 59 Durgah Committee v. Syed Hussain Ali, AIR 1961 SC 140260 Commissioner of Police v. Acharya Jagadishwarananda Avadhuta and Anr., AIR 1984 SC 51261 Part III. Fundamental Rights. The Constitution of God’s Island, 195062 Part IV. Directive Principles of State Policy. The Constitution of God’s Island, 195063 Minerva Mills v. Union of India, AIR 1980 SC 1789 (1806)64 Moot Proposition, p. 4, ¶ 12
MEMORANDUM FOR THE RESPONDENTS
one of it being the right to adequate means of livelihood65, an integral facet of the right to life66
which should be protected by the State by all means. The State is also obligated to protect the
material riches of antique nature67 which are of historical and national importance.68
Hence, the State through the acquisition, intended to give effect to the fundamental right
enunciated U/Art. 21 and the Directive Principles U/Arts. 38(1)69, 39(a), (b) & (f), 4170, 48A71
and 49 of The Constitution.
______________________________________________________________________________
[V] WHETHER THE OFFICIALS IN THE STATE GOVERNMENT OF LEOLAND CAN BE HELD
GUILTY OF COMMITTING ANY OFFENCE UNDER THE GOD’S ISLAND PENAL CODE, 1860
FOR THE RESTRUCTURING OF PROPERTY AND THE CONVERSION OF IDOLS.
______________________________________________________________________________
It is humbly contended before this Hon’ble Court that the Officials in the State Government
(hereinafter referred to as ‘Government Officials’) cannot be held guilty of committing any
offence72 under the God’s Island Penal Code, 1860 (hereinafter to be referred to as the ‘GPC,
1860’) for the restructuring of property and the conversion of idols belonging to The Deer
Temple. The Government Officials are being implicated in the present case as it involves
criminal jurisprudence.
65 Art. 39. “Certain principles of policy to be followed by the State, The Constitution of God’s Island”, 195066 Narendra Kumar v. State of Haryana JT, AIR 1995 SC 51967 Moot proposition, p. 2, ¶ 368 Art. 49. “Protection of monuments and places and objects of national importance”. The Constitution of God’s Island, 195069 Art. 38. “State to secure social order for promotion of welfare of the people”. The Constitution of God’s Island, 195070 Art. 41. “Right to work, to education and to public assistance in certain cases”. The Constitution of God’s Island, 195071 Art. 48A. “Protection and Improvement of Environment and safeguarding the forest and wildlife”. The Constitution of God’s Island, 195072 §. 3(38). “Offence”. The General Clauses Act, 1897
MEMORANDUM FOR THE RESPONDENTS
In the present case, it is relevant to establish the following to determine that the current case
cannot be heard before this Hon’ble Court and also to prove that the Government Officials are
not guilty of committing any penal offence under the GPC, 1860:
i. that this Hon’ble Court does not have the jurisdiction to hear the issue relating to the
penal offence; [5.1]
ii. that the requisite procedure under the Code of Criminal Procedure, 1973 (hereinafter to
be referred to as the ‘Cr.P.C., 1973’) has not been complied with; [5.2]
iii. that the acts of the Government Officials do not amount to any ‘offence’ under the GPC,
1860; and [5.3]
iv. that the Government Officials can avail of the General Exception U/§.7973 of the GPC,
1860. [5.4]
[5.1] JURISDICTION : LACK OF JURISDICTION TO TRY A CRIMINAL OFFENCE
The Respondents most respectfully submits that this Hon’ble Court does not have the
jurisdiction to try the commission of alleged penal offences in the present case. This is owing to
the reason that the Supreme Court of God’s Island is not a Trial Court [5.1.1] and that an issue
which has not been raised before the lower Court, i.e. the High Court, cannot be introduced at the
stage of appeal before this Hon’ble Court [5.1.2].
5.1.1: THE SUPREME COURT IS NOT A COURT OF TRIAL
The Supreme Court is not a court of trial i.e., the collection of evidence and
investigation cannot be conducted by the Supreme Court. It is the duty of the Appellants
73 §. 79. “Act done by a person justified, or by mistake of fact believing himself justified, by law”. The God’s Island Penal Code, 1860
MEMORANDUM FOR THE RESPONDENTS
to establish the case in the lower court. And only by getting aggrieved to such order can
they appeal to the Appellate Court. Therefore, in the absence of any judgement by the
Magistrate, the Government Officials cannot be held guilty for any penal offence by this
Hon’ble Court.
5.1.2: AN ISSUE THAT HAS NOT BEEN RAISED BEFORE THE HIGH COURT CANNOT
BE INTRODUCED AT THE SUPREME COURT
It has been held in a catena of cases that, no new point shall be allowed to be
raised at an appellate stage.74 In the present case, this issue of the presence of mens rea
over the Government Officials which has been introduced only before this Hon’ble
Supreme Court cannot be appreciated. Therefore, it is proved that this Hon’ble Court
does not have any jurisdiction to take up this issue at this point of appeal.
[5.2] PROCEDURAL CONFORMITY : THE REQUISITE PROCEDURE HAS NOT BEEN COMPLIED
WITH
The Respondents most respectfully submits that in the present case the requisite
procedure under the Cr.P.C., 1973 and The Constitution have not been complied with. This is
relevant as §.475 of the Cr.P.C., 1973 mandates the trial of all offences under the GPC, 1860 to
be conducted in accordance with the provisions of the Cr.P.C., 1973.
5.2.1: THE MAGISTRATE HAS NOT TAKEN COGNISANCE
Upon the High Court remanding the present case to trial, the Magistrate has the
power to take cognisance of the offence U/§.190(1)(c)76 of the Cr.P.C., 1973. But in the
present instance, there is no evidence to show that Magistrate has exercised such power
74 Kshitish Chandra Purkait v. Santosh Kumar Purkait and Ors., AIR 1997 SC 251775 §. 4. “Trial of offences under the Indian Penal Code and other laws”. The God’s Island Penal Code, 186076 §. 190. “Cognizance of offences by Magistrate”. The God’s Island Penal Code, 1860
MEMORANDUM FOR THE RESPONDENTS
and taken cognisance of the matter or whether, the Magistrate has ordered for the
investigation of the matter. Therefore, due to the lack of evidence on the above, it can be
proved that the requisite procedure has not been complied with.
[5.3] NO CRIME COMMITTED : RESTRUCTURING OF PROPERTY & CONVERSION OF IDOLS IS
NOT A PENAL OFFENCE
The Respondent most respectfully submits that in order to commit a crime, the
Respondents shall have either knowledge of the particular act; [5.3.1] or intention to do such an
act.77 [5.3.2].
5.3.1: NO KNOWLEDGE OF LIKELIHOOD TO HURT RELIGIOUS FEELINGS
The Respondents did not have the knowledge that the restructuring of the Deer
Temple would lead to hurting the religious feelings of the Appellant. Moreover the
Government Officials have been given the power to takeover and acquire complete
control of the property by both the Legislation78 and Amendment79. Thus, by acting to the
orders of an authority does not make the Officials guilty of any penal offence.
5.3.2: NO INTENTION TO HURT RELIGIOUS FEELINGS
The lack of evidence by the Appellant in order to prove the Respondents guilty
itself points out that the Government Officials did not contain any mens rea or guilty
intention to hurt the religious feelings of the Appellant.
77 Hari Singh Gour, The Penal Law of India, pp. 2377, 2378 (11th ed. 1998)78 Moot Proposition, p. 3, ¶ 1079 Moot Proposition, p. 5, ¶ 18
MEMORANDUM FOR THE RESPONDENTS
[5.4] GENERAL EXCEPTIONS : THE GOVERNMENT OFFICIALS ARE IMMUNE FROM
PUNISHMENT
The Respondents most respectfully submits that in the present case, the Government
Officials can avail of the General Defences or Exceptions which will have the effect of limiting
and overriding offences and penal provisions of the Code.80 §. 79 protects acts which are justified
by law or are bona fide believed, by mistake of fact, to be justified by law.81 In the present
instance, the acts of the Government Officials are justified under the State Legislation82 and the
Amendment to Art. 2683. They were merely acting under the authority and instructions of the
Government to execute the takeover and complete control of the Deer Temple property and thus
cannot be held liable for any offence under the GPC, 1860.
In light of the above, it is humbly submitted before this Hon’ble Court that in the present
matter, the Officials of the State Government of Leoland cannot be held guilty of any penal
offence under the provisions of the GPC, 1860.
80 Peter Murphy, Blackstone’s Criminal Practice, 34 (2003)81 State of Andhra Pradesh v. N. Venugopal, AIR 1964 SC 3382 Moot Proposition, p. 3, ¶ 1083 Moot Proposition, p. 5, ¶ 18
MEMORANDUM FOR THE RESPONDENTS
PRAYER
WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed before this Hon’ble Court to:
DISMISS the petition for being devoid of any merit and UPHOLD the order of the High Court
of Leoland and be pleased to declare that,
The Officials in the State Government of Leoland are not guilty of committing any
offence under The God’s Island Penal Code, 1860 for the restructuring of property and
the conversion of idols that belonged to the Deer Temple;
AND/OR pass any other order or orders as this Hon’ble Court may deem fit and proper in the
circumstances of the case and in the interest of Justice, Equity and Good Conscience.
All of which is most humbly and respectfully submitted.
Place: ________, God’s Island S/d_____________
Date: 9th September, 2015 COUNSEL FOR THE RESPONDENTS
MEMORANDUM FOR THE RESPONDENTS